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Stumbling toward a solution: Amoris in light of the moral law and pastoral practice

That the post-Synodal Exhortation, Amoris laetitia, has produced significant controversy, is not itself too controversial a statement. However lamentable the conduct of the controversy in some of its particulars, that the document should be have been controversial was inevitable.

The remarks to follow are scrupulously intended as general reflections offered in the hope that they might serve to inform the broader public conversation in the Church and in society, especially as the conduct of certain difficult and thorny issues surrounding the Exhortation is concerned.

Basically there are two camps in the controversy: one filled with people concerned to safeguard the Church’s tether to the natural moral law and to preserve the teaching the Church has received from her Divine Founder in all its effects; another peopled with faithful anxious to see that the supreme law – the salvation of souls – is truly and ultimately the one we serve and obey.

Both parties are right as far as they see matters, and each bears a measure of responsibility for the failures of its members to respect the vision and the good will of those in the other.

I do not pretend to have or to offer the solution to the controversy.

Nevertheless, I do have friends in both camps: people I respect and admire; and while I have always been able to see the reason in each, I have been slow to find my way to a vector of approach that would allow me to express what good there is in both the one and the other.

I think I may have stumbled on the way to thread the scandalous needle.

Since the first of the two recent synod assemblies on the family was announced – though really for several years and even perhaps more than a decade before that – I have been thinking about how we understand the mechanics of scandal in contemporary society.

Scandal, therefore – along with the related questions of “firm intent” as it relates to the circumstances and vicissitudes of contemporary life and the tension between the twin moral duties to follow conscience and to form it according to the moral law as authoritatively interpreted by the Church – are together the object of the considerations to follow.

The Notion of Scandal

The English word, scandal, comes from a Greek word meaning “stumbling block” or trap or snare. The Church in her Catechism defines scandal as:

“[A]n attitude or behavior which leads another to do evil, (2284)” and explains that they are guilty of scandal, “who establish laws or social structures leading to the decline of morals and the corruption of religious practice, or to ‘social conditions that, intentionally or not, make Christian conduct and obedience to the Commandments difficult and practically impossible.’ (2286)” Paragraph 2285 of the Catechism tells us:

Scandal takes on a particular gravity by reason of the authority of those who cause it or the weakness of those who are scandalized. It prompted our Lord to utter this curse: ‘Whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened round his neck and to be drowned in the depth of the sea.’ Scandal is grave when given by those who by nature or office are obliged to teach and educate others. Jesus reproaches the scribes and Pharisees on this account: he likens them to wolves in sheep’s clothing.

All this to say that scandal is serious business: even when someone seems unnecessarily or without sufficient reason to decry some attitude, or behavior, or state of affairs, as scandalous, we owe a certain respect to their earnestness – and ought not dismiss or make light of the concern, even if we are compelled by our own understanding of things to disagree with and even argue strongly against the judgment of our interlocutor.

At its most basic level, scandal is saying “evil” to good, or – what is usually less grave (but still very bad) and probably more common – saying “good” to evil, and so with a view either to excusing or encouraging bad behavior: usually positively, but sometimes negatively, by which I mean to say that sometimes the one doing the scandalizing will tell someone something like, “That’s not a sin,” or, “Go ahead and do that thing, it is good for you,” – positive – and other times, “You don’t need to do that thing (e.g. pay your taxes),” – negative – so that one discourages one’s interlocutor from doing something he really ought to do.

We are all guilty of scandal more often than we’d like to think, though we oughtn’t get too “hung up” on it.

The plain fact is: we run the risk of scandal every time we conduct any kind of transaction with any other human being. If we were to dwell too much or too closely on the duty to avoid scandal – I mean to the exclusion of all our other duties – we would never leave the house.

When a Christian comes to believe that he might be guilty of scandal, he ought quickly to explain the matter to a priest – ideally in confession – and there he ought to receive guidance, and resolve to be more careful next time, and receive absolution, and get on with his life.

At this point, the discussion shades perceptibly into the first of two major thorny patches in considering scandal and how to deal with it: recognizing it for what it is, and is not.

“Go ahead, have another – no one’s driving and no one’s working tomorrow!” may be scandalous: if, for example, the people to whom one says the thing really do have work to do the next day, so that one’s remark is encouraging sloth; or perhaps one or more of one’s companions are the sort given to overindulgence, so the encouragement to an otherwise unexceptionable extra tipple is really in fact a confirmation of a dangerous and unhealthy habit.

Perhaps the suggestion was not offered directly to the overindulgent companion, though, but only within earshot of him: or perhaps the fellow hearing the invitation was already – unbeknownst to the one making it – rather more severely impaired than he let on?

The point is that, even when the principles are clear and the object straightforward, circumstances and ends can conspire to make any situation difficult to parse.

This is all the more true of those cases, in which the stakes are high and the circumstances broadly social: say, when Christians are in irregular marriages and are desirous of resolving their situations but – for whatever reason – unable to do so, and yet desirous of returning to the Sacraments.

Scandal and the Law

The first question is: what is keeping such couples from the Sacraments in the first place?

The short answer is: the law – divine, natural, and human positive law – and though the controversy surrounding Amoris involves all three, it is specifically focused on canon law.

There are two canons in the Code of Canon Law, either of which – and sometimes both of which – would seem to keep people in irregular marriages at least from the Sacrament of Holy Communion: c.915 and c.916.

First, the full text of the two canons:

Can. 915 Those who have been excommunicated or interdicted after the imposition or declaration of the penalty and others obstinately persevering in manifest grave sin are not to be admitted to holy communion.

Can. 916 A person who is conscious of grave sin is not to celebrate Mass or receive the body of the Lord without previous sacramental confession unless there is a grave reason and there is no opportunity to confess; in this case the person is to remember the obligation to make an act of perfect contrition which includes the resolution of confessing as soon as possible.

This looks fairly straightforward: entering into a putative marriage after a civil divorce and without obtaining an ecclesiastical decree of nullity is gravely sinful – no one in his right mind disputes that; it is also a public act, marriage being by its nature a public institution, so entering into such an irregular union is a manifest act that is gravely sinful; refusing to disown the act and disavow any and all sinful behavior associated with it is therefore perseverance in manifest grave sin; perseverance in manifest grave sin is precisely what disqualifies one from admission to Holy Communion.

So, Pastors who know of the circumstances of people in irregular marriages cannot but refuse them admission to Holy Communion, on pain of dereliction of their duty under law – and the reason for the law is that to admit such persons to Holy Communion would be – in the strict, technical sense of the term – scandalous.

As for c.916: it simply beggars credulity to imagine that even the most poorly-formed Catholic should be so ignorant of the Church’s perennial teaching on the indissolubility of marriage, as to be not conscious of having committed a grave sin in contracting a civil union without first obtaining a decree of nullity from the Church; a person with such knowledge cannot therefore present himself for Holy Communion without violating the law.

Unpleasant as it is, the argument is seamless: non fa una piega, as we say in Italian – there’s really nothing to it, or for it – or is there?

I would like to suggest that there may be a way to untie this Gordian Knot: a way that preserves the integrity of the law and respects the reason for it, without falling either into sentimentalism or radical subjectivism.

Bear with me.

It is a settled principle of law and social commerce that people who present themselves as man and wife are to be presumed married. When it is generally known that a putatively married couple are in fact living in what the Church considers an irregular union – think of Henry VIII and Ann Boleyn – the scandal of the thing is ineluctable. Nevertheless, in a great many cases – I would hazard to say the vast majority of cases – the details of couples’ personal lives are not so well known: and citizens of civil and ecclesiastical society have a duty to think all the good they can of their neighbors; so that, when there is a doubt, we are to give our neighbors the benefit of it.

Said quite simply and shortly: we may avoid scandal simply by minding our own business and by being charitable in our considerations of our neighbors’ circumstances – as we hope they should be toward us and our own.

Even when irregularity is generally known, however, there may yet be room for charity to work its work: there does not seem to be anything keeping anyone from assuming that issues affecting a couple’s circumstances have been resolved, or that they are endeavoring to live together in continence – that is to say, abstaining from the marital act.

The arrival of new children would tend to defeat the latter assumption, but then there is always human frailty – the weakness of the flesh – for which we are by Our Lord enjoined in no uncertain terms to have great solicitude.

Here, we come to the second question: to which Sacraments are persons in irregular marital situations to be admitted, and in what order?

In the ordinary scheme of things, people living as man and wife, who are not man and wife, would need to avail themselves first of the Sacrament of Penance, before presenting themselves for, and being admitted to, Holy Communion.

Until very recently, the Church required people in irregular marital situations to separate, and where possible, to attempt reconciliation with their “original” spouses. At least since the time of Pope St. John Paul II’s Apostolic Exhortation, Familiaris consortio, however, the Church has recognized that such a step could be so extremely difficult and burdensome, and/or so dangerous to the health and security of the broader household (however irregularly constituted), as to be impracticable or at least inopportune.

Persons in irregular unions may not, however, be dispensed from the requirement to live continently, that is, to abstain from sexual relations, until such time as they are able to bring their domestic circumstances into conformity with the Church’s law.

So, once a person in an irregular marital situation repents of his decision to enter thereinto, and determines that he must nevertheless remain therein – because he cannot in conscience abandon his putative spouse or their issue to the vicissitudes of fortune, or because he is unable to support himself otherwise, or for whatever other sufficiently grave reason – he must receive absolution for his sins, including, but not limited to: faithlessness toward his first and favored spouse; scandalously entering into an irregular union; willing cooperation in other adultery (or at least fornication); exposing his children to an unwholesome domesticity; having contempt for the law of God and His Holy Church.

He must, moreover, resolve to abstain from sexual relations with his putative spouse.

What, however, if he foresees that this shall be impossible, either because it would risk shattering even the semblance of domestic order he has achieved, or because he considers himself unequal to the burden of continence, or both?

Here, we come to the crux of the matter.

Firm Intent

Holy Church requires that penitents, in order validly to receive absolution, must firmly intend to sin no more. The question is, therefore: how ought Holy Mother Church to measure firm intent?

I readily admit I do not have an answer to that question.

I do know, however, that porn addicts, compulsive masturbators, nymphomaniacs, homosexuals, fetishists, and others with a whole host of frankly far more disgusting perversions readily avail themselves of the Confessional, and there receive absolution, often – quite rightly – with a word of encouragement, an invitation to come back as often as necessary, and a promise that the Church will not abandon them, not ever, not for any reason.

Whatever the answer to the question of what constitutes firm intent for persons in irregular marriages, I think it more than reasonable to assume that it ought not be a standard more stringent than that required of perverts, some of whom are daily penitents and daily communicants.

Since the Church clearly recognizes in both teaching and practice that a penitent may indeed firmly intend not to sin, even knowing that he is very likely to fall into sin again, then it is not unreasonable to expect penitents in irregular conjugal circumstances to intend firmly not to sin, and to know that they will – in all likelihood and for a whole host of reasons no less complicated than those, which animate other sinners – sin again.

Residual Perplexities

His scriptis, I must confess I do not understand Pope Francis’ post-Synodal Exhortation, Amoris laetitia, the document that has been and continues to be the occasion – if not the source – of so much controversy.

I promise that my purpose in confessing this perplexity is not to engage in polemic.

I am Jesuit-educated, with a Jesuit ethos and the closest thing to an Ignatian spirituality that a simple Catholic layman can have. I sometimes say that I “speak” Jesuit. The election of Francis thrilled me. I was an early supporter and a continue to be a defender of his pastoral approach, which I find to be powerfully challenging and in the main effective.

Still, I do not understand Amoris laetitia.

This is not for a want of trying: my original inclination to read it as an attempt to encourage confessors to greater elasticity in judging the condition of firm purpose of amendment to have been met by penitents in irregular situations, was originally encouraged by Card. Schönborn in an interview with Vatican Radio on the day of the document’s release, and then apparently foreclosed by the same Card. Schönborn shortly thereafter in other remarks to other people, and by the Holy Father’s own private letter to the Bishops of Buenos Aires, which seemed to go beyond matters of pastoral prudence and into the re-interpretation and implementation of both doctrine and law, on the basis of the Synod Assemblies and the post-Synodal Exhortation.

This state of things is all the more confusing – and not a little consternating – since it is beyond my ken to see how a consultative body – the Synod of Bishops – is supposed definitively to have addressed doctrinal issues at all, let alone ones arising from the document issued summarily and without the body’s approval or oversight, after the body concluded its deliberations and dissolved its assembly.

I do not understand how a post-Synodal Exhortation can – properly speaking – teach anything. It is neither a teaching document nor a governing instrument of any kind.
I struggle to accept that the Successor to Peter would introduce so significant a development of doctrine and so upsetting a change in pastoral practice and sacramental discipline, by means of implication, let alone by way of implication to be drawn from a footnote – and I doubtless take a measure of consolation from our Holy Father’s insistence that he is doing no such thing.

I do not understand, then, either how an Apostolic Exhortation can teach anything, or how a private letter can clarify the “teaching” contained in the aforesaid not-strictly-a-teaching-document.

Austen Ivereigh recently wrote an interesting and engaging piece on the controversy. His well-written and carefully crafted piece thus captures the core of his case: “The synod kept the law – how could it not? It’s the law of Jesus – but defended a latitude in its application, recognizing, as did Jesus, that the law is necessary but insufficient, and has to be applied in such a way that respects the particularity of each person’s story.”
Here is what Jesus had to say about the matter:

And it hath been said, whosoever shall put away his wife, let him give her a bill of divorce. But I say to you, that whosoever shall put away his wife, excepting for the cause of fornication, maketh her to commit adultery: and he that shall marry her that is put away, committeth adultery. (Mt. 5:31-32)

Not satisfied, the disciples return to the argument. Our Lord tells them:

Have ye not read, that he who made man from the beginning, Made them male and female? And he said: For this cause shall a man leave father and mother, and shall cleave to his wife, and they two shall be in one flesh.

Therefore now they are not two, but one flesh. What therefore God hath joined together, let no man put asunder. They say to him: Why then did Moses command to give a bill of divorce, and to put away? He saith to them: Because Moses by reason of the hardness of your heart permitted you to put away your wives: but from the beginning it was not so.

And I say to you, that whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery: and he that shall marry her that is put away, committeth adultery. (Mt 19:4-9)”

St. Mark is at once more succinct and detailed:

[T]he Pharisees coming to him asked him: Is it lawful for a man to put away his wife? tempting him. But he answering, saith to them: What did Moses command you? Who said: Moses permitted to write a bill of divorce, and to put her away. To whom Jesus answering, said: Because of the hardness of your heart he wrote you that precept.

But from the beginning of the creation, God made them male and female. For this cause a man shall leave his father and mother; and shall cleave to his wife. And they two shall be in one flesh. Therefore now they are not two, but one flesh. What therefore God hath joined together, let not man put asunder. And in the house again his disciples asked him concerning the same thing.

And he saith to them: Whosoever shall put away his wife and marry another, committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery.(Mk. 10:2-11)

The Pharisees: Pope Francis is wont to accuse those, who would use the law to bind and trap, of being Pharisees – and rightly so – and as our beloved Holy Father leads us and the whole Church through this difficult and often contentious process of discernment regarding, among other things: marriage, the family, and the proper discipline of Holy Communion, we do well to heed his warning about the dangers of falling into a Pharisaical spirit in our thought and conduct, as we discern together the right course through the troubled waters of our time.

Who are the Pharisees? If we are honest, we will see that we all are, sometimes and to some extent. We are all called to open our heart to the Gospel and to allow Christ’s grace to work in us.

In the Gospels, however, the Pharisees are always the ones defending the Mosaic Law with respect to divorce, and the people – including the disciples – are scandalized by the clarity and sternness (not to say “rigidity”) of Our Lord’s own teaching.

Nevertheless, we are told of one Pharisee, who opened his heart to the transformative power of the Gospel: St. Paul (cf. Acts 23:6).

For all his obtuse and sometimes seemingly contradictory writings (St. Peter said so, not I. V. 2 Peter 3:16), Paul was utterly unambiguous on two points: the indissolubility of the Sacrament of Holy Matrimony (cf. 1 Cor 7:10-11) and the danger of receiving our Blessed Lord unworthily (cf. 1 Cor 11:29).

Reading this on my phone trying to make dinner makes it difficult to digest all your outstanding points, I’ll reread it to reply more completely.
My first thought though was it was the year of Mercy when the Pope wrote this and perhaps he was still in that mode when he wrote on marriage. Can’t imagine no one in the Vatican questioned his words. More later.

My uncle was in training in the Army Air Corps in California during WWII. First time away from home. He met a girl and got married in the Church. When he shipped out his “wife” immediately went back to dating soldiers. Many Catholic soldiers were trapped into marriages by women who wanted to get their death benefits. He got a divorce after the war and filed for annulment in his home parish. The bishop of this diocese would not grant annulment to anyone married in the Church, no exceptions.

My uncle remarried to a girl back home, had seven children, a very happy home life. He and his second wife (who was not Catholic) went to Mass every Sunday and were actively involved in support of their country parish. After 40 years of marriage the Church finally granted him an annulment. Over the years he had the support of many Jesuit priests who interceded for him making a very strong case for annulment. There may be many marriages that would be granted annulments in our time to either old cases that were not granted or to new cases when the Catholic spouse who has been granted a civil divorce does not apply for annulment because of misunderstanding of Church Law, a parish priest who is unsympathetic, an annulment processing fee the person cannot afford, or for fear of his/her former spouse. If their marriage ought to be annulled but has not been annulled, is the person still “living in sin” and excommunicated?

Finally, I find myself agreeing with those who call annulments “Catholic divorce.” Jesus was firm on this point according to the Gospels. If the attitudes in place today regarding annulment were there in bygone days we might not have a Church of England.